Defense counsel also worked as a part-time municipal
prosecutor in the same county as that in which defendant
was indicted. Although nothing in the court rules or
decisional law prevented defense counsel from acting as a
municipal prosecutor and as a defense counsel in the
Superior Court of the same county, the Supreme Court
amended R. 1:15-3(b) to preclude a municipal
prosecutor from simultaneously serving as defense
counsel in the Superior Court in the same county in
which he or she serves as municipal prosecutor.
In State v. Reddy, 137 N.J. Super. 32 (App. Div.
1975), two defendants were charged with first degree
murder and were represented by the public defender for
a considerable period of time. Representation continued
without objection until two weeks before trial, when
defendants applied for a continuance of a suppression
hearing in order to obtain private counsel. Although an
accused has the right to the assistance of counsel, this
right is defined as a fair opportunity to secure and consult
a counsel of his own choice. However, there is no absolute
right to a particular attorney, reasonable diligence must
be utilized in choosing. Therefore, a failure to act
expeditiously in obtaining any attorney will permit the
trial court in its discretion to do what is reasonably
necessary to meet the situation.
In State v. Jaquindo, 138 N.J. Super. 62 (App. Div.
1975), aff’d sub. nom. State v. Rizzo, 69 N.J. 28 (1975),
some of the charges against defendants were based upon
alleged acts which occurred after their attorney had left
the city prosecutor’s office. This did not preclude a
finding of a conflict of interest, or appearance of conflict,
as to disqualify the attorney where much of the
information relevant to the crimes charged was gathered
while the attorney was an assistant prosecutor and where
the crimes charged in one of the indictments involved
alleged manipulation or cover-up of previously gathered
evidence. Jaquindo held that defendants are entitled to
retain qualified counsel of their own choice, but they have
no right, however, to demand to be represented by an
attorney disqualified because of an ethical requirement.
See also State v. Morelli, 152 N.J. Super. 67 (App. Div.
1977); In re Ethics Opinion 361, 75 N.J. 199 (1978).
In State v. Canery, 144 N.J. Super. 527 (App. Div.
1976), certif. denied, 74 N.J. 259 (1977), defendant and
his accomplice were charged with assault with intent to
rob, robbery, and being armed while committing these
offenses. At trial, it was discovered that one investigator
had been assigned by the Public Defender for both
defendants and had interviewed the victim on behalf of
both of those parties. On appeal, defendant claimed that
his conviction was invalid by virtue of the investigator’s
conflict of interest. The court held that the use of an
investigator who (because of a conflict of interest) would
curtail the scope of his investigation could negate the
right of a defendant to have adequate and effective legal
services. The same standard should be applied to an
investigator as to an attorney in the dual representation
of a case. The applicable test is whether the investigator
was forced to compromise his investigation on behalf of
one defendant in order to shield the defense strategy on
behalf of the other.State v. Boone, 154 N.J. Super. 36 (App. Div. 1976),
certif. denied, 77 N.J. 493 (1978), held that a defendant,
whose attorney was representing defendant’s employer,
was denied his constitutional right to effective counsel
where the conflict of interest was not made apparent at
trial. The associated attorney had an absolute duty to
disclose to defendant the potential for conflict of interest
resulting from dual representation.In State v. Rogers, 177 N.J. Super. 365 (App. Div.
1981), app. dismissed 90 N.J. 187 (1982), three staff
attorneys of the same public defender’s office,
represented three defendants at trial. The Court held
that such joint or dual representation, without more does
not constitute a denial or impairment of the defendants’
right to counsel. The Court further decided that State v.
Bellucci, 81 N.J. 531 (1980) was retroactive. The Court
refused to reverse defendant’s conviction because there
was no suggestion of actual conflict in the theory and
presentation of the defense or any possibility of prejudice
as the trial unfolded.State v. Pych, 213 N.J. Super. 446 (App. Div. 1986),
held that attorneys who are under indictment are not
prohibited from practicing law or from serving as trial
counsel unless their representation of the defendant may
be materially limited by the attorney’s own interests.
R.P.C. 1.7(b)(1), (2). Further, the attorney is not
obligated to disclose the fact of his indictment to
defendant. In applying the two prong test enunciated in
State v. Bell, 90 N.J. 163 (1982), concerning the conflict
of interest, the Appellate Division in Pych held that the
matter for which defendant’s attorney was under
indictment while representing defendant did not present
a potential conflict of interest. Assuming that such
potential existed, there was no significant likelihood of
prejudice to defendant that would warrant a finding of a
constitutional infirmity in the attorney’s representation
of defendant, because each was indicted by and
prosecuted in different counties before different trial
courts, there was no evidence that the trial court knew of